If California Legalizes Pot, How Will the Feds React?

Next month, voters in California could vote to legalize the use of marijuana for recreational use — a result that simply wouldn’t have been thinkable five years ago. According to a recent Field Poll, 49 percent of likely voters approved of measure, called Proposition 19, while 42 percent disapproved.

Thing is, regardless of what happens in California, using any quantity of marijuana for recreational use will still be a violation of federal law, namely the Controlled Substances Act, first passed into law in 1970.

So what will happen? We did a little digging on the issue and churned out this little piece for Wednesday’s WSJ. The bottom line: nobody really knows what might happen.

On the one hand, some think that the two sets of laws will be in conflict. And under the Supremacy Clause of the Constitution, when federal and state law conflict, the state law is nullified. This position was articulated in this WSJ opinion piece Wednesday by a handful of former DEA administrators.

The California proposition is not a close call. It will be in explicit conflict with established federal law. It will also violate our government’s treaty obligations with other countries.

That said, the Justice Department hasn’t yet articulated this much — that the passage of Propostion 19 would be in direct conflict with federal law. And not everyone agrees with the former DEA administrators. “Nowhere is it written that California has to have a law outlawing marijuana,” says Erwin Chemerinsky, the dean of the law school at University of California, Irvine. “Proposition 19, if it passes, will not be unconstitutional on [Supremacy Clause] grounds.”

Nevertheless, legal and public policy experts told us that the federal government will likely have to do something — if not wage a successful legal battle. For starters, the California ballot measure might run afoul of international treaties signed by the U.S. that attempt to control the drug trade. Legal experts seem to disagree on the treaty issue.

Another potential problem for federal officials: Legalization in California might make marijuana more available throughout the country, potentially undermining state laws elsewhere. That would put federal authorities “in an incredibly tough spot,” said Gerald Uelmen, a professor of criminal law at Santa Clara University.

In a statement, a Justice Department spokesman said it was “premature to speculate on what steps we would take” in the event California passes the measure, but that it will continue “to focus its enforcement resources on significant traffickers of illegal drugs, including marijuana, in all states.”

One option: The Justice Department could beef up federal enforcement in California. But experts question whether the Justice Department has the will and resources to be effective, especially in regard to small-scale growers and users.

“Is the government going to put hundreds more DEA agents in northern California to go after cannabis growers?” asked Mark Kleiman, a professor of public policy at the University of California, Los Angeles. “It might, but if there’s no state-level enforcement, California would still be the safest place to grow pot.”

About Law Blog

The Law Blog covers the legal arena’s hot cases, emerging trends and big personalities. It’s brought to you by lead writer Jacob Gershman with contributions from across The Wall Street Journal’s staff. Jacob comes here after more than half a decade covering the bare-knuckle politics of New York State. His inside-the-room reporting left him steeped in legal and regulatory issues that continue to grab headlines.

Must Reads

First Amendment advocates and major media companies are urging a federal appeals court to throw out a defamation judgment against "American Sniper" author Chris Kyle that entitled former Minnesota Gov. Jesse Ventura to more than $1 million of the royalties from the book.

A federal jury in Los Angeles on Tuesday ordered singers Robin Thicke and Pharrell Williams to pay about $7.4 million to the family of Marvin Gaye, after finding the duo’s 2013 hit song “Blurred Lines” copied parts of Mr. Gaye’s “Got to Give it Up.”